Supreme Court verdict on Section 377 will spark many more challenges to inequality, discrimination

by Anand Grover and Tripti Tandon

Today is an historic day for India. The Supreme Court has decriminalised sex between consenting adults in private under Section 377.

With the judgment of the Supreme Court today, we, Indians, have attained a second azadi for those who have continued to be persecuted after Independence by the law enacted by the British in 1861. It has freed the LGBTQI communities from the yoke of a colonial law. This will usher in a new inclusive India which is the need of hour. This is a profound change. The LGBTQI communities can walk tall and openly with their heads proud and held high as equal citizens with dignity, liberty and fraternity. This will open new vistas for other challenges and opportunities, which will be welcome. A lot of people have waited a long time for this day. It has come at last.

Victory could not have been sweeter than this after years of struggle and after many setbacks. Though the wait was a long one, from 2001. But it has been well worth it, with all its ups and downs.

It all started in the offices of the Lawyers Collective in Mumbai after the great victory in the HIV field, that magnificent judgment of Justice VP Tipnis in Mx Of Bombay Indian Inhabitant vs M/S. Zy And Another (1997). That verdict directed that all HIV positive persons who were functionally fit to do the work could not be denied a job in the state or public sector.

The judgment received a great deal of publicity and soon gay men were knocking on the doors of the Lawyers Collective office. We realised fairly quickly that the bane of most of their complaints — stigma, discrimination and blackmail by the police of dating partners — arose from Section 377. The availability and accessibility of services for HIV was impeded and young gay men were reportedly subjected to conversion therapy by their families We decided that Section 377 should be challenged.

Naz Foundation filed the writ petition in the Delhi High Court through the legal team at the Lawyers Collective. It was dismissed by the Delhi High Court on the ground of maintainability. In the challenge to that order, the Supreme Court firmly said that the matter must be decided on merits and not technicalities.

Soon, other groups joined the fray with Naz Foundation in the Delhi High Court. Others opposing us also put in their might — they were of the view that HIV had nothing to do with gay rights. The Government of India filed contradictory affidavits — the Health Ministry supported the petition and the Home Ministry opposed it.

Ultimately, the Delhi High Court, in a seminal judgment in Naz Foundation, pronounced the decriminalisation of sex between consenting adults in private. Well reasoned and deep in understanding, it liberated the LGBTQI communities from a colonial era law.

Unfortunately, the euphoria of the high court verdict was short lived because the Supreme Court in Suresh Kumar Koushal vs Naz Foundation trumped it. But the Koushal judgment was short-sighted, narrow and unreasoned in its approach. We wrote a large number of articles that Koushal was wrong and it was bound to be set aside. Of course, we filed review petitions, which were dismissed. Then we filed curative petitions, which are still pending.

The first blow to Koushal came with the NALSA vs Union of India (2014) judgment. Carefully written, and without overstepping its jurisdiction (as it sidestepped Koushal), it granted gender recognition on a self-identification basis to the transgender communities. That was one wicket down in a three-wicket match.

The other wicket fell with the privacy judgment of KS Puttaswamy vs Union of India and Others (2017). The Supreme Court, through judgments authored by different judges, held that the treatment of privacy in Koushal was wrong. The second wicket was down. Now, only the final wicket had to be taken. Victory was, thus, a foregone conclusion. The questions asked by the judges in the Supreme Court in Navtej Johar vs Union of India only confirmed this.

The verdict of the Supreme Court, therefore, is not unexpected. But it is a watershed moment in our history. In the historic verdict, the Court emphasised the many strands that make up India, the centrality of individual freedom, reaffirming that old adage, “unity in diversity”.

It will throw up several challenges on equality and discrimination. Suppressed for a long time, the LGBTQI communities in India will demand their rightful share in all spheres of life. Not only in employment, but in education and services and all other spaces, both in the public and, especially, the private sector, for which there is no law at the moment. That journey will shape new lives for all citizens.

Similarly, the law on rape is inadequate to address non-consensual sex other than within the binary of man-woman sex. Such is also the case with sexual harassment. These apart, there will be the demand for a same sex marriage law. Though that may take time, as it has in many other countries, a civil partnership law can easily be brought in as an interim measure.

Grover, a Senior Advocate, represented the Naz Foundation in Delhi High Court and Supreme Court and is a founding member of the Lawyers Collective. Tandon is deputy director with th Lawyers Collective